hours. rick: absolutely no tips. you'll be just fine. you can't break the babies, that is my tip, you can't break them. jenna: just congratulations. rick: hug them a lot. congratulations everybody, thanks for joining us. jenna: "america live" starts right now. megyn: fox news alert serious questions for the white house today on the resignation of via director david petraeus. who knew what and when and what it all means in the search for answers about the terror attack that killed four americans if libya. welcome to live live, everyone i'm megyn kelly. we begin with hour at the white house where press secretary jay carney business to hold his first briefing since news broke that general petraeus had stepped down. we haven't heard for him in a while. this is going to be interesting. word of the general's extramarital affair reportedly with his by og graph tere paula broadwell sending shock waves through (d) c. and beyond. it came days before the general was supposed to sit down with

lawmakers to discuss the deadly attack on the u.s. consulate in libya. tkweucritics are questioning why the news now broke publicly when some in washington knew about the allegations against mr. petraeus for months. the chairman of the homeland committee is with us. i know you believe this is major crisis, why? >> i really do. i'm looking forward to the meeting on thursday with the other actors involved here. as far as why i believe it was handled wrong by the fbi, first of all to have something like this a cyber harassment case rise to the level of an fbi investigation. when it reached the cia director, have the fbi investigate the director of of the cia and the president or the attorney general not be notified of it is a dereliction of duty.

the president if he was not told should have been told and that to me was somebody really dropping the ball. the other thing makes the whole thing implausible is you have a four, five, six-month investigation whatever it was. nothing comes out, nothing is disclosed. suddenly on election night the fbi announces the investigation is over and they tell general clapper. the next day the white house finds out about it, the next day general petraeus submits his resignation. friday the president accepts the resignation. we find yesterday the fbi raiding the home of paula broadwell. then we find out general allen has been involved in emails with joe kelley, so you have like four or five different events happening in the last seven days when for the prior five or six months nothing happened publicly. megyn: let me jump in. there are so many names that i think the viewers may be confused. the top line item here is that the general admits, general petraeus, the head of our cia admits to having this affair

with now the woman we know as his biographer. there are questions about who in the administration knew. can you explain to the viewers who are sitting at home thinking this man is a decorated war hero, he's responsible for the architecture of the successful surge in iraq which saved a lot of lives, why they need to care about his marital indiscretion? >> as head of the cia it's always felt that someone in a spy position or espionage position is vulnerable to blackmail if they are having an affair, any kind of sexual involvement at all. that's been the exception throughout the decades that a person in that position cannot allow himself to be subject to blackmail and that would have been a possibility with general petraeus. megyn: we'll go through it bit by bit. isn't it possible that the fbi, they started investigating this because some woman named jill kelley in florida contacted her fbi friend reportedly and said i'm getting harassing emails from this woman, it turns out to be broadwell. the fbi starts to look into it

because they are friends with kelley and they find paula broadwell's emails and it turns out she is having an affair with the cia director which raises a whole host of other questions. when they find that out isn't it, it's not good, but it's petraeus' private business. it's an affair he shouldn't have had. we'll tell somebody but we don't have tow bring it to a white house level. >> i disagree with that. the director of the fbi, nothing how central general petraeus was, the fact that general petraeus was going around the world literally negotiating special arrangements with other countries that he had unique relationships w. he was representing the u.s. he cut u put us in an if any of those people out there would have learned about these indiscretions if you will. the president should have known and made the final decision, do i want this person out representing our country under these cirksess. that to me is important to the president. megyn: we don't know for sure. we only know they denied it.

jay carney is going to speak right now. standby. let's listen to what they are saying about petraeus now. >> his policy agenda. he has confidence in the acting director in the cia and he has confidence in the military to carry out the various missions that he has asked them to carry out. on specific individuals and matters pertaining to the recent revelations i would refer you to the pentagon and the ig, on the one hand and to the fbi with regards to general petraeus. >> he's not shaking his head saying guys, look, we need a more credible, competent sense of leadership. >> he's not going to make grand pronouncements or decisions about things based on, you know, two situations, two individual cases. he's focused on the missions that the military is tasked with

carrying out and the cia, and the general intelligence community is tasked with carrying out and with enacting his overall agenda, which encompasses not just national security policy but obviously domestic policy. yes. reuters, jeff. >> has the president spoken to general allen directly? >> not that i'm aware of no. >> secretary panetta? >> i'd have to check that. secretary panetta has been traveling. >> as sort of a follow-up to the last question, is this an unwelcome distraction at the time when he was just reelected and has a bunch of priorities in terms of fiscal cliff and in terms of his cabinet? >> i certainly wouldn't call it welcome. obviously as i said to ben that the information about general petraeus came to him as a

surprise, and he is very appreciative of general petraeus' remarkable service to his country, but the president is focused on the agenda that he believes is important for this country, that he has to carry out, working with lawmakers here in washington. and that includes as you know his number one priority, which is jobs and economic growth. and he is engage nothing meetings this week on those issues, on the issues of the approach we need to take to assure we have the right economic policy, the right fiscal policy to help the economy grow and help it to continue to grow jobs. he is also continuously focused on his foreign policy and national security agenda. he has great confidence in the acting cia director. he has confidence in his military and the secretary of

defense and defense department to carry out the mission has easy signed to them. but he's got obviously a lot that he wants to get to work on, and he's doing that this week. >> how does this affect, though, his need to revamp the national security team. >> again, i think these are specific questions about specific individuals and posts. i can say now, even though you haven't asked, that i have no announcements to make with regards to personnel and no speculation to engage in. i can tell you that the president has not made a decisions on personnel matters and you will not hear me discuss them until the president has made those decisions and has announced them. >> jay, you're saying regarding two specific people you can't extrapolate. these are two military brass involved in extramarital affair or what might be called inappropriate behavior. is the president at all worried about an inappropriate culture

in the military? >> i really would ask you to not extrapolate broadly. the president has great confidence in the military, great confidence in his commanders and will continue to have that confidence. with regards to the specific instances here, i think you need to address your questions to the justice department and the fbi, or the defense department. the president is focused on doing the work that the american people reelected him to do and he's continuing to do that. >> does he have reason to believe that national security was ever breached or threatened at any point in either of these instances? >> i think that questions like that which guy to matters under investigation i would refer you to the investigative bodies. you know, the president is focused on the work that he needs to do and, again, i think there's been substantial reporting on some of this. and, you know, the president spoke and met with general

petraeus and agreed with his decision that he could no longer lead the cia, and accepted his resignation. he has great faith in the acting director, and, you know, the president is focused on the agenda that he wants to carry out. >> on another topic i know you're not going to address personnel matters. does the president have confidence, i know he's a big fan of ambassador susan rice, does he have cold front that she could pass a senate confirmation for any post in his cabinet. >> i will not speculate about personnel matters. the president believes ambassador rice has done an excellent job and is grateful for her service. yes, john. >> jay, this investigation has been going on for months. how is it that the white house didn't have any idea of this until the day after the election, and then congress a few days later? >> i would prefer you to the fbi. they have -- as i understand it protocols in place for when they

notify the legislative and executive branches of investigations. and, you know, it is simply a fact that the white house was not aware of the situation regarding general petraeus until wednesday, and the situation regarding general allen until friday. so, you know, the fbi is the place to go in terms of an explanation of the protocols they follow. but i understand that that is the answer that they will give, that there are protocols they follow, that govern how they inform the various branches of government of these kinds of investigations. >> do you understand how people would think this is utterly bizarre, i mean the day after the election, and the anger you're hearing on capitol hill that they didn't know this was going on, at least the timing, at least the appearance. >> look, all i can tell you is when the white house was informed. and i would let the relevant

members of congress explain to you how and when they were informed. my understanding is there are protocols that the fbi follows with regards to these kinds of notifications, and i would refer you to the fbi and the department of justice for an explanation of those protocols. again, what the president is focused on is the work that we have to do right now to help our economy grow and help our economy create jobs, and, you know, there are obviously a whole host of other issues that are out there, and that he and others have to contend with, and he and others are doing that. but his focus right now is on working with congress to move the country forward economically. >> senator collins said that it is imperative that general petraeus testify in the hearings on benghazi. you've heard similar statements from senator feinstein.

do you think it is appropriate for the former cia director to be testifying about what happened, given that he was director at the time, and given that he's conducted his own review? >> i'd say two things, one that it is up to congress to make decisions about who is called to testify, but the president is confident that acting director morrell is fully informed and capable of representing the cia in a hearing about benghazi. >> jay i want to go back to something that was just asked. about susan rice. if she was to go before a confirmation hearing -- >> for you i'll break the hypothetical rule. >> nobody 0 else. >> thank you. if she were to go before a senate confirmation hearing could she answer questions with a simple yes? are questions answerable?

>> i'm not sure what you're asking, april. again, i'm not going to speculate about personnel matters and who will or will not be participating in nomination hearings. you know, i can tell you that the president believes that ambassador rice has done an excellent job, as the united states ambassador to the united nations, and i believe that -- and i know that he believes that everyone here working for him has been transparent and in the way that we've tried to answer questions about what happened in benghazi and going back to briefings that we had again and again, that the information that we provided was based on the available assessments at the time, and as those assessments evolved and became more detailed and clear we provided additional information, and that was certainly true of the questions

that i answered and the information that i provided, and it was true, obviously of ambassador rice. >> there are a lot of moving pieces on this chess board. we also understand that governor duval patrick is maybe one piece that you might be bringing in. he did have -- he did have dinner with the president. could you give us a read out on that, and are we expecting his resignation as governor any time soon? [laughter] >> i have nothing to say about hypothetical personnel moves. i can tell you as i think i did the other day the president and -- considers governor -- the governor of massachusetts a good friend. he has broken bread with him on numerous occasions in the past, and i'm sure will in the future. and i was not a participant in this particular meal, but i'm sure that they had a discussion

on a broad number of topics and enjoyed each other's company. >> there was nothing strategic. >> i don't have a read out of a personal dinner the president had, but they are friends, so i would say, yes, a friendly dinner. >> jay, is the president satisfied with the explanation he's got even from the fbi? and has he had a conversation with director mueller. >> i'm not aware he had a conversation with the director. i can simply tell you that, you know, the process -- when the white house was notified. [inaudible] >> the president was obviously surprised, but he has, i think it was made clear by the statement that he put out, was very appreciative of general petraeus' service both in uniform and at the cia, as well as holly petraeus' service and

wanted that to be made clear. you know, there are protocols in place, as i understand it and i haven't -- >> it sounds like you don't have an answer. >> i think it would be -- >> if he was satisfied would you tell us? >> i would not suggest -- given that he was surprised as i said before that he is pleased with the events of the past week, or the past several days, but the fact of the matter is, you know, there are processes in place to handle these kinds of things. they are playing out appropriately, and the president is focused on, you know, working with members of congress to enact an agenda that he believes the broad majority of american people want enacted. >> it sounds like he didn't like the fact that he was blindsided. >> i didn't say that. he has great admiration and respect for general petraeus and

his service. [inaudible] >> again i would refer to processes in place at the fbi for how they deal with notifications of investigations. and i think that they are the best place to go for an explanation of those processes and procedures and why they are written the way they are and followed the way they are. all i can tell you is the actions that were taken here, and the note m notifications that happened here, and how the president has handled them. >> is the president concerned that the petraeus -- this whole soap opera slows down the fiscal cliff negotiations, makes it harder, makes it easier, what's -- >> i haven't heard him make a judgment or express an opinion on that. i think that the issues that confront us are important enough and consuming enough with regards to the so-called fiscal

cliff and the budget that he expects that those who are engaged in conversations about it and negotiations about it will be as focused as he is and will be in the days and weeks ahead. so, you know, we have very concrete deadlines that are governing some of the actions that we have to take, and what we know is that on january 1st everyone's taxes go up, everyone in this room, everyone everyone around the country unless the house passes the bill that the senate passed which would extend tax cuts for 98% of the american people and 97% of small businesses. and the beauty of that partial solution to the fiscal cliff is that everyone supports it, everyone, democrat and republican supports extending those tax cuts for the middle class, extending them for 98% of the american people and 97% of

the small businesses. so as you heard the president say on friday, and as i know you'll hear him say when he meets with you tomorrow, you know, this is a step that the white house -- i mean that washington can take that would create certainty for almost all americans, certainly for almost all small businesses. would help alleviate some of the potential damage that could be caused by the fiscal cliff and would enable us to move forward to address the many other issues that we have that confront us. it would be an excellent way to demonstrate to the american public that after an election where these issues were central to the debate, that washington can move forward and that we can compromise. >> given the -- everything that is going on with petraeus and weland allen is the president going to ask the national security team sort of, hey, guys i know you want to leave, but give me another month or two? >> i really don't have any

announcements or hints to make about personnel matters. the president -- >> does he think he can make these changes in the midst of all this right now? >> you know, what changes you're talking about i think depends on which broadcasts and newspapers you follow, but i'm not going to engage in that kind of speculation. the president has -- knows that he has a very strong team in place, and will make personnel decisions when appropriate, and he'll announce them when he's made them. >> [inaudible. >> i have no personnel announcements to preview. >> does the election change part of his strategy with dealing with republicans on the deficit reduction plan? some of the things he offered in the past still on the table? >> i think one of the useful

things about the -- this past year and the election is that these matters that the president and congress will be deciding in the coming days and weeks and months were front and center during the campaign season. in many ways they've been front and center for the past several years. why that is useful is that we all know what the parameters of a compromise look like. we know what a truly balanced approach to our fiscal challenges looks like. megyn: there you have it jay carney in a busy press conference before the white house presents core. i'm going to get back to congressman pete king in a moment. standby chairman. i want to give the viewers the highlights. we didn't get to all of the news before we went into that. you heard the back and forth about general petraeus. he's resigned as director of the cia in the wake of the revelation that he had an extramarital affair with the woman who wrote his biography. then it emerged that general

allen who took over for general petraeus in running our strategy in afghanistan had also reportedly been engaging in what has been described as inappropriate emails with another woman, a woman named jill kelley who lives down and tampa, florida. separate and apart from this paula broadwell. you see this jill kelley here, she's a social liaison of some sort to some military officials. now, jill kelley and general allen had some sort of social relationship, or professional relationship that resulted in a bunch of allegedly inappropriate emails and general allen is being questioned about those. a source close to him says there was nothing inappropriate, they were friends and that is all. that is being investigated. you heard jay carney responding also to whether there is a isis of leadership in the military and jay carney is saying they are not going to go that far and president obama has great confidence in the military and his commanders. back to david petraeus, apparently the president does

not have confidence in him because he accepted his resignation and when asked whether the administration expected that general petraeus would nonetheless testify before congress on what happened in benghazi, the murder of our ambassador and three others, and general petraeus was one of the the first we are told to go to congress and start talking about a video, which now we know was not the case, it wasn't about a video. he was going to go before congress this week and tefr about it. then suddenly his resignation comes. then suddenly the revelation of the affair comes and some have asked whether those two are connected and not a mere coincidence. jay carney saying there that the president has cough dense that the acting cia director, mike morel can do it. we do not believe then that the white house is going to push to have petraeus go before congress and talk about benghazi, but you heard even democratic senator dianne feinstein has said that that is imperative that they hear from him. not only was he the one telling

congress about this video in the early days but he went over to benghazi recently on a fact-finding mission of sorts, there was a report he drafted up. they want to question him about it. doesn't look like that is going to necessarily happen right now. one other note before we get back to chairman king, that is jay carney speaking about personnel. there's been a lot of reports that perhaps leon panetta is going to leave as defense secretary. we know hillary clinton plans on stepping down. who will be the replacements? does he have any personnel announcements and jay k-rpbee saying that the president has not made any decisions regarding personnel. i want to get back now to chairman king. mr. chairman, thank you for waiting, and listening to that. i want to get your reaction, let's just start off with this question, he was asked whether the white house knew, what was the knowledge at the white house with respect to the petraeus affair, when did he know, and this is how jay carney spoke to that issue. >> i would refer you to the

fbi. as i understand it they have protocols in place as to when they notify the legislative and executive branches of investigations. it is simply a fact that the white house was not aware of the situation regarding general petraeus until wednesday, and the situation regarding general allen until friday. so, you know, the fbi is the place to go in terms of an explanation of the protocols they follow. but i understand that that is the answer that they will give, that there are protocols they follow that govern how they inform the various branches of government of these kinds of investigations. megyn: your thoughts on that mr. chairman. >> first of all as far as informing congress, leon panetta the secretary of tk*efrpbs who was the cia director says congress should have been informed, that is number one. as far as the white house, the fbi may say they have protocols as far as guilt or in sense, as far as a criminal investigation. here we are talking about a

foreign policy leader, general petraeus. the president as commander and chief has to know, someone an integral part of that team if that person is under a cloud, is being investigated in a way that could compromise his performance as cia director. that should trump everything. we are not talking about revealing any secrets of petraeus. we are talking about the president knowing, being told that a member of his team potentially could be compromised and is in the scope of a major investigation. i don't accept that at all. the fbi should have told them and that should be the policy, and we will find out whether or not anyone in the white house had in fact been told or should have known. megyn: the "wall street journal" which is owned by the same parent company of fox news channel is reporting that attorney general eric holder knew in general, that at least the attorney general of the united states had the information about petraeus in september and yet it was not supposedly shared with the white house, with the president until last wednesday. do you find that plausible or acceptable? >> i don't find it plausible. it's possible, and if that's the

way it was done it was wrong. it was improper. i can't believe that a a sitting cabinet member, a close adviser ever the president would allow the president to be sending general petraeus around the world on these high-level, top secret missions nothing that this was hanging over general petraeus' head. that again should trump everything. the president's main job is to be commander and chief. that was important for him to know. he could decide whether he wanted to keep general petraeus on the team, keep sending them on this mission. megyn: does petraeus need to testify before congress about libya. >> absolutely. megyn: thank you mr. 4 chairman. thank you for being here. we'll see if it happens. we appreciate it. that is one of the key questions about whether the two events are tied, his resignation and his now canceled testimony before congress about what happened in libya. we will be probing that a little further in the broadcast. we've also been watching this white house briefing for news about changes to the president's cabinet. i told you moments ago jay carney touched on that.

we got reports earlier today that president obama is considering senator john kerry to be the next secretary of defense. again panetta has not resigned but there is a question about whether he is likely to and they seem to be floating a trial balloon at least to "the washington post" about senator kerry possibly replagues him. we will look into his stance on the military and war and we will talk with former white house chief of staff andy card next about the controversy that might come with a kerry nomination. major companies sparking controversy saying the president's healthcare law could change the way they do business. ahead what that means for employees. >> we have to pass the bill so that you can find out what is in it away from the fog of the controversies. questions?

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megyn: we are watching for possible news about the president's cabinet. there are reports that senator kerry is being considered for secretary of defense. he was also at the center after controversy during his own 2004 presidential run when the swift boat veterans for truth group challenged his record as a war hero and slapped his testimony before a congressional committee claiming it was face and

misleading. but the controversy goes back even farther than that. >> reporter: john kerry came home from vietnam in 1969 as a decorated war hero. he became an active anti-war activist and wrote a book called "the new soldier," which documented the anti-war movement including veterans giving their medals back to congress, tossing them on the steps much congress. john kerry was among them. there was a picture of veterans lifting the flag upside down that's thought were mocking marines at iwo jima. he indicated that war crimes were well known by all levels of command. >> they told the stories that he had personally raped, cut off ears, cut off heads, taped wires

from portable teflts to human genitals and turned up the power. cut off limbs, blown up body, randomly shot at civilians, raised villages. >> reporter: the testimony caused an outroar. he later acknowledged the language was a little hot here and there. kerry also came unfire for comments he made to a massachusetts peace group in the 1970s cite sizes an all-volunteer military saying quote i'm convinced a volunteer army would be an army of the poor and the black and the brown. we must not repeal the trav i of the inequities present during vietnam. i fear having a professional army that views the per pet was of war crimes as simply doing its job.

the incident for which kerry was award the silver star came into question. he was given the star because during a firefight he shot an enemy fight more was armed with a rocket launcher. but a group called swift boat vets for truth claimed kerry shot a vietnam teenager who was not part of a superior force. in 2006 kerry made this statement to a group of college students in southern california. >> we are here to talk about education but i want to say something. education -- if you make it most it and study hard and do your homework and make an effort to be smart, you can do well. if you don't you get stuck in iraq. >> reporter: the criticism to that was loud and it was often. john considery said he botched that joke, he did not mean to be critical of the soldiers serving in iraq. he meant that to be aimed at

president bush. megyn: i'm joined by andy card, the former white house chief of staff under president bush. andy, welcome back to you. so there are obviously some changes i assume second term for the president we talked about. holder, we talked about hillary clinton will go, and the reports that senator kerry would be tapped for secretary of defense are going to get some pushback for the same reasons we just saw trace outline in that report. your thoughts on it. >> i think the president deserves the benefit of the doubt when it comes to what people he wants to serve in his cabinet or his immediate staff at the white house. if the president wants a john kerry as secretary of defense we should give hip the benefit of the doubt. that doesn't mean the senate should aban don't responsibility to take a hard look.

john kerry has to define where he is today an owns every word he said in the past. a confirmation hearing would have to be pretty inclusive in terms of what his record has been and where he would take the country. but ultimately i think a john kerry nomination for secretary of defense if that's what the president wanted, i think the senate should look at that with an eye towards approving it rather than going in with an expectation that they would turn it down. he would not be my choice more secretary of defense. i don't think his training even in the senate would lend him to that credential. he was more in the foreign service diplomacy than the armed services side of the united states senate. these are probably trial balloons being set up by the administration. i wouldn't mind seeing this trial balloon being shot down. but if it stays up and the president nominates him i would

say senators should look at john kerry with an objective eye knowing he would have to own the words of the past but speak specifically about what he would plan to do in the role and see if he would stand the test of confirmation. megyn: "the washington post" is suggesting the president is considering kerry for secretary of defense. and another saying the secretary of state. i remember the swift boat controversy. this was covered by a lot of reporters including major fair hot was with fox news in were troubling reports and a lot of veterans who didn't have anything to do with the swift boat veterans for truth who were upset with senator kerry and those tapes and other facts emerged. if the president does choose to go with him, understanding the president gets his choice and we should defer to him. should that be taken as a thumb in the eye by those serving, do

you think? >> i believe that would be the case. i don't think this would be a nomination without controversy. i think the president deserves the benefit of some doubt it doesn't mean senators shouldn't meet their responsibilities to consider and confirm or maybe challenge the confirmation. megyn: why do you think he would do it. >> i don't think john kerry is the right answer to the problems we have in our military. given the likelihood budge let have to be cut and priorities will have to be established that are not the priorities of the past, i'm not sure john kerry brings the kind of tools to the responsibility that we would expect in a secretary of defense. but if that's what the president wants he would have to own that decision. megyn: i want to ask you about susan rice. she is said to be on the short list or perhaps the front oner for hillary clinton's job. now secretary of state. she has been relatively quiet

during barack obama four years until lately. now i think all of our viewers know her because she went on all the sunday talk shows and told us everything that happened in benghazi was linked to this video which we know is not the case. can we ascend into the cabinet into this position in the cabinet given that? >> i think she would have a tough time in a confirmation hearing. a lot of the republicans and democrats have concerns about what happened in benghazi and the situation surround the attack on our consulate that resulted in four americans dying including our ambassador. her comments did not stand the test of credibility in the days after we learned more about what actually happened in benghazi. she has a lot of the questions to answer in a public hearing. john kerry has run for president. he ran to be commander-in-chief. his record has been scrutinize. susan rice does not have a great track record of public exposure

of her performance in office and i think she would have to answer to some of the questions that have ris in the recent past, specifically around benghazi and what happened in libya. megyn: the cia director's sudden resignation throwing a wrench into the hearing on the libya attack. what the white house just said about having general petraeus testify on libya. this man's name is synonymous with computer security. but software pioneer john mcafee is in trouble with the law. see why he's the prime suspect in a murder investigation.

megyn: jay carney speaking with the resignation scandal

involving general petraeus and what it means for the bipartisan investigation. mr. carney says the president has faith that the acting director at the cia can replace general petraeus at the upcoming hearing. >> it's up to congress to make decisions about who is called to testify. but the president is confident acting drct director morrell is fully capable of representing the cia in the hearings about benghazi. megyn: did you catch carney's press conference? and what was your reaction to that comment. >> it's interesting to watch him. he was reading that particular part of the press conference. i think they are trying to be careful with they say on this matter given the twists and turns we have seen in recent days and the potential legal

implications for general petraeus. there are some reports he could be subject to charges, whether military or not we'll see how that develops. the question of who testifies before congress, that's congress' decision. the house intel committees, you just interviewed peter king. they will decide whether petraeus can opt out of this. it seems to me when he was the one who testified before congress and in that time period after the benghazi attack and by all accounts he said this was a result of a spontaneous attack. he has to answer for that statement, if there are questions the committee has about that. i don't see how morrell at first blast glance can be substituted in when petraeus was the head of the organization when this attack took place. megyn: he will testify about

what the cia knew and when they night, but there is another question here with respect to benghazi that i don't know whether morrell can testify to and that is whether petraeus was in any way compromise in his initial assessment and reports to congress and so on about what happened in libya. according to the congressional sources who received his briefing, he was talking about a video. some have questioning openly whether he was motivated to say that because he felt he needed the white house to have his back. i don't understand the theory. but the question is was he compromised. >> it was interesting to hear the paula broadwell comment from denver where she raised the possibility that some of the militants being held at the cia annex, then she went on to say petraeus knew within 24 hours of the attack about this situation. well nephew within 24 hours of

the attack, did he not know it wasn't a spontaneous demonstration that caused it? so then would you have to ask, why did he go to capitol hill and testify to that. these are questions. we don't know the answers. jennifer griffin and catherine herridge have done terrific reporting on this. this should be a factual inquiry because it does involve the lives of americans and our national security. we had the cia director and now a commander of our forces in stan, they were distracted by other things that were on their mind of a personal nature and we don't know what was compromise. i'm not satisfied with just hearing these pronouncements made by people, at least nothing was compromise. how do we know nothing was compromised, right? megyn: the reports were he

engaged in inappropriate communications with jill kelley. the actual reports say potentially inappropriate. and a senior officials say that's untrue. he had a friendship with this woman and the reports of 20,000 to 30,000 pages of e-mail are not true. general petraeus admitted to what he did. i want to ask you -- we'll talk about holder after the break. there are reports he knew in september. but do you believe the white house denial that the president didn't find out about this until last week and the white house was in the darks on this thing? >> it seems bizarre to me. but a lot the administration does seems wacky and bizarre. it falls in line with the idea that eric holder, very close friends with the president, either he didn't think it was a big deal or he wanted to protect the president politically or he night was a close election and didn't think this would be

helpful. even if he didn't think it investigation would amount to anything. just the word that there were questions about petraeus could be a problem. megyn: we'll pick. you on that and what you think his obligations were right after the break.

megyn: there are reports that eric holder was told about the petraeus situation in late summer or september. it's unclear what he was told about the petraeus investigation. about it would have been something along the lines there was one by the fbi. your thoughts on that. he's claiming and the administration is claiming that information was not forward onto the white house. >> at the very least eric holder has an obligation to barack

obama who is his ultimate boss, to inform him about potential intelligence breaches and potential criminal problems -- could be criminal problems with the top ranging official in the administration. it's potential. but the president -- if i were president and my cabinet secretary withheld information like this. if i would be livid. i couldn't imagine that happening. but it raises the question of what was -- what did eric holder know. was it so inconsequential that it would be a bother to the president during an election season and something he would get worried about for no reason? if that's the concern he must not have known very much. but nephew that personal e-mail of this cia director was being examined and that it involved a journalist who was at one point doing a biography of him and had

written extensively about him. to me that seems like a potential problem and not just a political problem. but a potential national security problem. everything we know about how you have to be vetted before you enter the administration. i was just a junior speech writer. as a junior speech writer right out off college i had to go through this ridiculously -- you know, background check. this is what you have to do. when you are an intelligence official you really have to go through a backgrounds check for security clearances. david petraeus had been under the microscope. to me the fact that this came up and eric holder is claiming the president didn't deserve to know about it or wasn't that big of a deal, it's just bizarre. i don't want to pass judgment but i think it's bizarre and we need to know more. megyn: thanks so much for being here. you may not recognize his face

but you probably know his name. john mcafee, known for his software that protects millions from computer viruses is wanted for murder. this woman bringing new meaning to the partisan divide accused of trying to run down her husband over the election. [ male announcer ] are you considering a new medicare plan?

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remember, open enrollment ends friday, december 7th. we can help. call unitedhealthcare to learn about medicare plans that may be right for you. call now. ♪ megyn: brand-new reaction from the white house on the sex scandal surrounding general petraeus. in the white house briefing press secretary jay carney was grilled by reporters about the timing of how this thing broke. white house press secretary jay carney says the white house found out about petraeus' affair with paula broad well one day after the election and two days before it became public knowledge. a few days later word of potentially inappropriate

correspondence between general john and and a woman named jill kelley. she is the person who set this in motion by trorgt an fbi friend some emails she was getting from someone she thought was threatening. that person turned out to be paula broadwell. as the fbi looked into those harassing e-mails, they found evidence of an affair between broadwell and general petraeus. all of that, the week before general petraeus was set to testify in congressional hearings about the terrorist attack on our consequence flat benghazi, libya. because of his resignation general petraeus no longer has plans to testify. here is what the white house had to say about this incredible chain of events. >> how is it the white house didn't have any idea about this until date after the election

and congress two days later. >> i would refer out fbi. they have protocols in place for when they notify the legislative and executive branches of investigation. and it is simply a fact that the white house was not aware of the situation regarding general petraeus until wednesday. and the situation regarding general allen until friday. the fbi is the place to go in terms of explanation of the protocols they follow. but i understand that that is the answer that they will give. there are protocols they follow that govern how they inform the various branches of government these investigations. megyn: david trucker is the associate editor for "roll call." the fbi has protocols for when they report something and that

is true but does that and the question about whether they followed protocol in terms of not getting this to the white house sooner? >> i don't think that answers the question. these are things we'll find out in the coming days and weeks it's true that whenever you are investigating a high-ranking official, anybody down ballot in the government is going to want to make sure they have got things right. nobody wants to bring an accusation against somebody like the cia director unless they know what they are talking about and they know exactly what the facts are because it's not going to bode well for them as an investigator or somebody lower level if they start hurling accusations that don't and out. there is something to the fact that the fbi wanted to make sure it knew what it was talking. the question we don't have answered yet. at some point the fbi felt like it knew wait needed to know. was that not until right around the election or was that much

sooner. megyn: the longstanding fbi policy is for the fbi not to brief congress and the white house in the middle of a criminal probe that does not involve a security threat. there is a question about whether they thought this could be a security threat. or whether they did not think that and when they did alert someone up the chain, who knew what and when. these reports from the "wall street journal" that eric holder knew something in september but the white house claims it was not told until last week. i want to ask you about libya and general petraeus' testimony. he emerged as a central figure when we were trying to figure out who was talking about a video when all the information from the ground was a terror attack. and we didn't know who was saying -- who said anything about a video. then we found out from lawmakers

that generous * wa that general. there have been plenty understand stanes where somebody who was no longer serving in government went to testify before a committee, taking a look at a certain policy or incident. i don't think stepping down at characteristics a director precludes him from testifying. we should be careful to not let one thing look as thought it's affecting the other. i don't see david he tray us would want to embarrass himself and his family to get out of testifying over what happened in benghazi when we consider the fact that he's been resected as a military man and thinker on both sides of the aisle. the democratic chairwoman of the senate intel committee wants him to testify, dianne feinstein, as

well as house republicans. so this is a bipartisan request and hope that he gets before congress. these things appear to running to the but there is more to this than meets the eye. megyn: there are two schools of thought. if you think the two events are related, about benghazi it could go either way. if he defended the administration and the story about the video and then it emerged he had had this affair an was disgraced people might say the testimony was why did he lie to congress. then you could spent the other way, that he told people a false story about a video because he wanted the administration to cover his back lest the affair comes out. and whether the two events are connected in any way, shape or form. david, thank you.

this is the early days in the wake of all this and there are respect people on both sides of the aisle asking these questions. we'll get answers as the days and weeks start to pass as congressional leaders including democrat dianne feinstein continue their investigation. one of the questions is whether the justice department was obligate to disclose what it found out was happening with the cia director. was this a potential threat to national security that attorney general eric holder needed to their with the president? we'll take on that question later this hour. after nearly two weeks of having to wait in lines like this, new jersey residents can breathe a small sigh of relief as governor christie announces gas rationing implemented in the days after superstorm sandy has come an end. a small step towards normalcy. though there are still tough times for tense of thousands of storm victims across the garden

state. >> reporter: although the storm happened two weeks ago, there are some areas that look like it happened 48 hours ago. this is one of the many homes that were hard hit in sayreville. the water came on to the first floor. they lost everything they own. the dressers,ed kids' room. they barely got out. because water had never risen more than a foot in the basement, they never expected it to come into the house. jennifer, you are just working to recover. we have seen basically everything you own has been destroyed here. what is your hope from the government? i know i called out to people for help. who should help and how quickly would you like to see it happen? >> it has to be a combination of state and federal government.

this is 230 homes that flooded three times in 32 months. we can't just keep rebuilding. it's the definition of insanity. we'll just keep on flooding. water came up our street just from the nor'easter. though our houses were already flooded. we just want to be able to leave and start our lives someplace else. i would say here if they would keep my property taxes. i just can't live here and neither can my neighbors. >> reporter: you talked about the uncertainty. you had a chance to speak with your insurance company and federal agencies. what are they telling you? >> the meeting last week with the borough said we were looking at a buyout and they were saying it's judge fund. historically i believe hotter towns that have had buyouts, they had a combination of

federal money through flood mitigation grants as well as the blue acres. there has got to be a way. you know, there's just got to be a way. >> reporter: we are hearing similar sentiments from the neighbors. still a lot of mystery as to where money for recovery will come from and a lot of people struggling to make a plan for what comes next. megyn: an extramarital affair forcing general petraeus from his postal the cia. but did he break any laws? there is a question about whether he committed a crime and can the retired army general be prosecuted? the anti-virus my sphere john mcafee at the center of a murder case. we'll tell you who's accused of killing. reports that president obama may be considering senator john kerry for a pentagon position.

deck scary of defense? that could spark real controversy. >> we are here to talk about education but i want to say something before. education -- if you make the most it and study hard and do your homework and make an effort to be smart, you can do well. if you don't you get stuck in iraq. are you receiving a payout from a legal settlement

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megyn: the cia director has resigned over a sex scandal and leon panetta may be on the way out. we don't have that confirmed. but there are reports's considering leaving and the "washington post" is reporting that senator john kerry is being considered for the top choice at the pentagon. the top job. a choice that would likely bring back some old controversies.

joining meet ceo of ben square communitycation. we don't know who is leaving but kerry's name surfaces in the post as the potential for secretary of state. and now secretary of defense. trace gallagher did a report outlining the controversy when he ran for president. by want ralph to comment on this first on the reaction we would get if he were nominated to that post. >> it tells you a great deal about the obama administration that the secretary of defense is a consolation prize. this would be a remarkable insult to the men and women in uniform to nominate for secretary of defense a man who made his political career

trashing our military. criticizing it. who told lies about war crimes in vietnam and more recently joked about how side and uneducated our soldiers are. i don't want to hear john kerry is a combat veteran. so is benedict and nold. >> are you out of your mind? john kerry got the silver star for his service in street a number. this is not about running for president. it's about swift boating people. john kerry would be a great addition to the president's staff. i have known him since 1985 and he never mentioned he would like to be the secretary of defense. he wrote foreign relations, foreign relations, foreign relations as his three choices for committee assignment. megyn: he wouldn't bronze star and silver star. the reports were he threw hose

medals over a fence in protest. a lot of veterans protested the war. but he did tonight a way that became controversial. our viewers may not remember when he ran for president in 2004, this group called the swift boat veterans for truth. here is a sampling of that so they know what we are talking about. >> they personally raped, cut off ears, cuts off heads, the accusations that john kerry made against the veterans who served in vietnam was devastating. >> randomly shot at civilians. >> it murder more than any physical wounds that i had. >> cut off limbs, blown up bodies. >> that was part of the torture was to sign a statement that you committed war crimes. >> razed villages. >> john kerry gave the enemy for free what many of i and my comrades took torture to avoid

saying. it demoralized us. >> there have been questions about his military awards. they got generous in vietnam. i wasn't there, i can't speak to his awards. but the surest indication after man's character that i know is what his military veterans, comrades think of him. those he served with and those who served beneath him. and it was remarkable that veterans who served with kerry came out so vigorously against him. i'll tell you vets stick together. even peacetime, relative peacetime, cold war vets. my friends are still my best friends are the ones i made in the military. vets stick together. for them to criticize john kerry as they did tells you a lot. this guy -- mr. mahon was right. he wants to be secretary of

state an would do a lot less damage there because that's a hot air position. megyn: secretary of state is what we had been hearing for a while. michael, i want to get your response to all that. >> clearly your guest made a point. the guys that served on the boat john kerry was in charge of stood with him through 2004. they were in harm's way with him and stood beside him. i would agree with the bar your guest is saying. other point is that ad was tang out of context. he was reading a report about what was happening in war, and war is not pretty. it's unfair to rerun that. he was at that testimony in the 70s. he was reading what others were writing about what was happening in war. megyn: can i get your thoughts on the comment we ran in the last hour when trace did his report when he said you go to school and you get a good education and if you don't you

wind up serving in iraq. a lot of vets and active duty folks took that as an insult. >> i love john kerry but i don't think he should be a standup comic it wasn't a good joke and it wasn't fair. i think he would say that himself. megyn: you think he wants to be secretary of state? >> i think so. his dad with us a diplomat. he served in europe. he spent much of his younger days when his dad worked at the state department. he has been chair of the senate foreign relations committee. he would be a huge asset to the administration. megyn: your thoughts on that, ramp if he were moved over to that post as opposed to the pentagon. >> at least he took an interest in foreign affairs. he has some knowledge of it. but his only call which case to oversea the navy is he's a wind surfer. he's a high flyer thanks to his

marriage. that's the air force. no qualifications for the marine corps. but this guy has never been interested in our military except to trash it. don't nominate this guy for secretary of defense and insult our troops. megyn: i'm glad you were both here. thanks so much. new questions about the timing of general petraeus' resignation. did attorney general eric holder know about this prove early on and did he wait too long before notifying the white house or members of congress. he's the founder of one of the most successful u.s. tech firms in history. anti-virussify near. john mcafee. he's on the run for murder? in. blah

megyn: an american tech giantfir after murder case. john mcafee is a wanted man. police in belize naming him a person of interest in the murder of his neighbor. law enforcement thinks this guy is on the run. trace gallagher has the details. >> reporter: he's on the run and he's talk. he sold his cyber security firm in the 90s for $100 million and moved to a small island off the coast of belize. those who cover internet security say he went there to rescue the poors but said he got

involved in drugs and prostitution. they claim he had vicious dogs that would often charge people on the beach. one of the people who complained about the dogs was his neighbor gregory faull. and the gun, the murder weapon matched one of the guns that john mcafee had. though he said that gun was confiscated months ago. mcafee contacted "wired" magazine saying he's innocent saying he was the target of the killer and the killer went to the wrong house and shot his neighbor. he says he's hiding out for his life. our top tech editor says in this case it's hard to know who to believe. >> i heard this man is a compulsive liar. there are reports police raided his house and found a trove of

guns. so a lot of contradictory information. it's hard to tell what to believe at this point. >> reporter: the police in belize have yet to file formal charges against him. he's a person of interest. he walked away from the u.s. with $100 million. now he claims he lost all but $4 million in the u.s. financial crisis. the editors at the technology department don't know what to believe when it comes to this guy. megyn: the irony of the security paranoia how he made the money in the first place. the squall treat journal reporting that attorney general eric holder knew of the petraeus investigation as early as september. if that's true why did he not inform white house about it? we'll have a fair and balanced debate on that right after the break. a high school * hockey league coming under fire for a plan to

save money by putting "the national anthem" on ice. >> i don't agree with it. it's a bad policy.

>> this investigation has been going on for months. how is it that the white house didn't have any idea of this until the day after the election? and congress a few days later? >> well, i would refer you to the fb with i. they have, as i understand it, protocols in place for when they

notify the legislative and executive branches of investigations. and it is, you know, simply a fact that the white house was not aware of the situation regarding general petraeus until wednesday, and the situation regarding general allen until friday. >> it sounds like he doesn't like the fact that he was blindsided? >> no, i didn't say that. i'm just saying that, he, you know, has great admiration and respect for general petraeus -- >> [inaudible] director mueller knew. >> no, i understand that. but again, i would refer to processes in place at the fbi for how they deal with notifications of investigations. and i think that, you know, they are the best place to go for an explanation of those processes and procedures and why they're written the way they are and followed the way they are. all i can tell you is the actions that were taken here and the notifications that happened

here, and, you know, how the president has handled them. megyn: that was jay carney last hour answering questions about the fbi investigation that led, ultimately, to the fall of former cia director david petraeus and now has reporters asking whether the attorney general could have or should have notified the white house or congressional leaders on capitol hill about this when he first became aware of the investigation which "the wall street journal" reports was many september. was in september. joining me now, jay sekulow, who has argued a dozen cases before the u.s. supreme court, and julian epstein, former staff director for the house government reform committee. so that is the question. we appear to have this fbi protocol that normally requires them to wall off the congressional branch and the white house from criminal probes that they have underway unless it involves intel matters or an intel or security threat, and

there's a question about whether that was this case. nonetheless, jay, you tell me, because it seems that if they think that -- if they stumble upon an intel matter, they have to at least bring it to department leadership, meaning eric holder. so they went to him. >> correct. megyn: why wouldn't he go to the president? >> well, inexplicable to me because we're not just talking about a cia agent, we're talking about the head of the cia, america's chief spy, if you will. and the idea that attorney general holder knew in september that, in fact, there was this investigation and probe going into general petraeus and that he did not notify the president of the united states that this was going on the is inexplicable to me. and i understand the protocols, and i've worked with the department of justice, i've worked with treasury, i understand the protocols. when there's national security issues at risk, there's a difference, and that is the cia director serves as at the pleasure of the president of the united states, and this idea --

i feel horrible for general petraeus' family, putting all of the moral implications and all of that aside, how do you not have the president of the united states know that the person he is communicating with at the cia, his director has been possibly compromiseed. that, to me, is what's inexplicable here, megyn. i just don't you said -- i just don't understand it. general petraeus could have well been come -- compromised, but inexplicable. megyn: julian? >> well, as you pointed out in the opening, the fbi rules and the statutes are very clear that during the course of an ongoing criminal investigation you don't share that information either with other executive branch agencies, including the white house, or with congress because you come to poise the investigation, and there's a longstanding position now that's decades old trying to keep the fbi out of politics which is the reason why you don't share that information with other executive agencies. there was a 1947 statute that is

very vague that says that you do inform both congress and the other intention agencies if there's a significant intelligence failure. of but the fbi determined, and this is all of the information that we have that's publicly available right now, that there was no security breach. and as such once they make that determination, they would really be going outside the rules and really the statute if they are going to begin starting to share this information with either congress or other executive branch agencies. megyn: go ahead, jay. >> you know, megyn, there's one problem with this whole thing, and that is -- and i know julian's had tremendous experience working with congress and served very well as judiciary counsel and is an excellent lawyer. and i understand the parameters and protocols, but there's two problems. number one, congress should have been notified and so should have the white house. number two, this isn't any investigation, this is the head of the cia, okay? this is the head of the central intelligence agency and was put in a compromised position. you could argue that that statute's vague, let me tell you when it's not vague, it's not

vague when it's in national security interests and it's your cia director. so walling the president off from this just doesn't make sense. and i understand the protocols. again, i respect the investigations. but this is a compromising situation which now, apparently, is expanding. and at the same time you had the cia director under an investigation while he's going to benghazi to determine what happened there. i mean, let's put all of this together. it doesn't look good. megyn: julian, and i will, i'll give you the floor, but it sounds like jay's making the argument just because in the e-mails there wasn't a security threat because paula and general petraeus are see eling classified info, the very fact that he's been compromised is the threat itself. >> right. none of us have access to what was actually in the e-mails. but, so we don't -- >> doesn't matter. >> what we have to do is trust the fbi judgment at the this point until we have other information that contradicts it that there was no national security implication regarding this affair. now, to take jay's argument, i

think, to its logical conclusion, the argument would be that anytime anybody has access to national security information, top secret information, be that person is engaged in an extramarital affair as such they could potentially be blackmailed, then it is the fbi's duty to inform congress and the executive agency. that would mean that anytime a member of congress is involved in an extramarital affair, that all the congressional committees should be notified -- >> no. >> because that's -- megyn: no, i want to jump in because -- hold on, hold on. >> top secret information as well. >> not what i said. megyn: i want to focus right now on the attorney general because we do understand the fb with i went to eric holder in september, and they told him something. he knew manager about this situation with petraeus. and, jay, you tell me how it works, but it seems you bring the information to a thinking, reasoning human being who can then make the judgment about whether this is something the president needs to know about or

not. should we be deferring to the attorney general on that, or -- >> not the standard. megyn: it's not the standard? is. >> no. >> no, actually -- megyn: jay and then julian. >> hold it, because this is the fundamental -- you know, julian, what you're asking for is a trial, a conviction, a determination of guilt -- >> no, i'm not. >> and then you tell the president. >> to, that's not my argument, jay. >> let me, please. the fundamental issue here is was our national security compromised. this wasn't just an extramarital affair, this was someone who had incredible access to the head of the cia, okay? so we're not just talking about anybody here. and while i feel for general petraeus' family and i know general petraeus has served the country honorably, this incident raises a significant security issue because it puts the head of the cia in a position where he can be compromised. and how the attorney general cannot then determine that that should go to the president of the united states, frankly, is beyond me. megyn: go ahead, jay. >> he had statutory authority to

send it to the president. >> jay makes a, being the superb attorney he is -- megyn: got the mutual admiration society going today. >> yeah. >> about perhaps what the statute and the policy ought to be. perhaps the policy ought to be that anytime the head of a security agency is involved in anything that is potentially compromising, the president ought to know about it. that is not what the statute says. what the statute says is if the agency makes a determination there has been a significant security failure or breach, then you inform the other agency, then you inform congress. here the fbi, according to all the information we know, has made a determine nation that there was not -- determination that -- megyn: it didn't get there. i only have a minute left, and i want to get to this last point. if the fbi started this probe because some gal was getting harassing e-mails, then they found out it was this paula, oh, look, she's having an affair with the cia director. so that's how it goes down. so they do a criminal probe to find out whether she's guilty of harassing this other gal.

don't share information in the midst of a criminal probe, you know, with the white house and so on, do they even apply when it turns out that the fbi, they didn't charge anybody, they -- >> right. megyn: is this any longer about the criminal probe or is it now the fbi's uncovered information that may be relevant to our intelligence services -- >> it is. megyn: so does that free them up to go report in a way that the -- >> of course, it does. megyn: jay, then julian, and then i'm going to go. go ahead. >> that's exactly correct. what the e-mail said or did not say is almost irrelevant. the determination is the cia head was put in a compromised position, and the fbi head and the department of justice, attorney general, knew that. that is a reportable issue to the president. then the president could determine whether he wanted petraeus to serve or not at the president's decision. fine. but i agree with leon panetta, the congress should have been notified and certainly the president of the united states. megyn: it ultimately came out after whistleblowers stepped forward. go ahead, julian.

>> the question is when the fbi is in the process of doing the investigation, there's been no conclusion as to whether there's been a criminal breach or not. >> he can't wait for conclusions, julian. >> let me finish the point. it's only once the fbi determines there hasn't been a criminal violation that then they are free to share the information unless, of course, there is a significant intelligence breach during the course of that investigation in which point the obligation is triggered as well. megyn: all right, my last question, but, julian, then why are they telling us about the potentially inappropriate e-mails that general allen had with this other woman? why do we know about that in the process of the investigation? >> whether well, it's a very good question. my understanding of things is that the fbi has made a determination that there's no crime involved that's worth them pursuing, and that there there o hasn't been a significant intelligence breach. most of their investigatory work has been done, and that's why they're sharing the information at this point. megyn: okay. i know e kind expanding this --

jay, jay, can they force general petraeus to testify on benghazi if. >> oh, i think they can. i think they can subpoena him. i think he's an honorable guy, too, in that sense. i don't like what he did allegedly -- megyn: he saved a lot of lives. >> i think he should testify so we know what happened in benghazi. because right now his report is under a cloud. he needs to clarify that. megyn: yep. >> and i totally agree with jay on that. he won't -- >> there you go. >> he should come before congress, and he should testify. there are legitimate questions about whether the cia took the necessary steps with respect to security in the outpost of the benghazi operation. absolutely fair game. they shouldn't have to subpoena him. he should appear voluntarily. megyn: great debate, as always. thanks for being here. >> thanks. >> thank you, megyn. >> thank you. megyn: follow me on twitter @megynkelly. well, coming up next, could general petraeus be court-martialed because of this behavior? the answer may surprise you.

kelly's court is next.

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megyn: kelly's court is back in session. on the docket today, could general petraeus be charged with a crime here? joining me now, joey jackson, now defense attorney, and mercedes corps win who is a fox news legal analyst. joey, could he? >> absolutely not. listen, this is a person who has protected us for so long. megyn: irrelevant. conceded, butter rell vent. we concede, i mean. >> this was a personal failing. number one, no longer in the military. he's the director of our central intelligence. number two, by all indications there was no security breach. number three, these e-mails that were going back and forth were not linked to his cia e-mail, but were a personal account. number four, this was a matter of consensual. consensual matter between who people -- megyn: but, before you go down the list any further, but the united states code for military justice makes adultery a crime. if you're active duty. so if this happened, mercedes,

while he was active duty before he took on the job as cia director, it is a crime potentially. >> exactly right. it's section 134. clear as day. now, he met broadwell back in 2006. they met on the harvard university campus. and suddenly he says, no, no, it was after i retired. yet in interviews broadwell says the connection between them was immediate, it was intense, they became close. she was his biographer, she spent a lot of time with him. where there's smoke, there's fire. you're going to tell me that for five years this extramarital affair did not begin? megyn: it's very clear according to some reports out today those who served with him in afghanistan it was a, quote, open secret that the two had a relationship that was beyond professional. if they can prove that he was having this affair while he was active duty, the code as i read it, the ucmj code says you have to have sexual intercourse with

somebody, the sexual partner has to have been married to somebody else at the time and to the prejudice of good order in the armed forces or of a nature to bring discredit upon the armed forces. >> >> i do not dispute that's what it says. however, i would think that the people in charge here would use their discretion to continue to keep us safe, to continue to protect the interests of this country and not go down a path which would look and see whether or not this affair occurred prior to him -- >> joey, we don't know. megyn: but if they don't look into it -- [inaudible conversations] what about the regular enlisted joe who gets pushed under this statute? how's that going to make him feel that he got charged under it, but not general petraeus. >> exactly. i mean, there's gown to be intense scrutiny as to the timing of the relationship because it's absolutely critical. if he is subject to court-martial, it's clear under law that he would be, it's something that has to be fully fleshed out and investigated. and if he does, then he should be court-martialed.

megyn: but on the other hand -- >> this is just the tip of the iceberg. megyn: this is where joey's point about his honorable service comes in because even if they have the elements of the alleged crime, i mean, the man is credited with a surge strategy in iraq which they say saved countless numbers of of american and civilian lives over in iraq. i mean, is this -- do we really want to, the potential penalties, dishonorable discharge, forfeiture of all pay and allowances and confinement up to a year, really? >> you know, they're never as good as they are on their worst day. we do concede that there was some type of affair here. but to judge a person who has been a hero, who has protected us, who has been promoted nine different times -- megyn: yeah, it's extraordinary service. >> i mean, the whole program we would need to talk about what he's done. i think it's a path we should not go down. i think the country should continue to focus on -- megyn: mercedes, last word. >> his service would o go to the mitigation of whatever penalty

would fall upon him. if he's found, if he's court-martialed, penalties will fall upon him, and that will go to the mitigation, mitigation, l just be less than the average joe. >> thank you, general petraeus. megyn: what a sad, sad development in a really storied career. thank you both so much. >> thanks, megyn.this megyn: we'll be right back. more. no, it's worse -- look, our taxes are about to go up. not the taxes on our dividends though, right? that's a big part of our retirement. oh, no, it's dividends, too. the rate on our dividends would more than double. but we depend on our dividends to help pay our bills. we worked hard to save. well, the president and congress have got to work together to stop this dividend tax hike. before it's too late. so, which supeast 4g lte service would yochoose, based on this chart ? don't rush into it, i'm not looking for the fastest answer. obviously verizon. okay, i have a different chart.

going that way, does that make a difference ? look at verizon. it's so much more than the other ones. so what if we just changed the format altogether ? isn't that the exact same thing ? it's pretty clear. still sticking with verizon. verizon. more 4g lte coverage than all other networks combined.

megyn: well ark group overseeing high school hockey teams in parts of pennsylvania looking to ice the national anthem. they say playing the star spank led -- star spangled banner takes too much time. trace gallagher with more. >> it was the hockey league commissioner, he sent these e-mails to 183 different high schools in central and western pennsylvania saying that he suggested that maybe they skip the national anthem before the hockey games. well, as you might imagine, his

e-mail inbox was filled with some not-so-cordial comments. but the commissioner made it very clear this has nothing at all to do with a lack of patriotism. listen. >> the national anthem should not be played only because of the time constraints, okay? ice is very, very hard to get, okay? and it's not cheap. and we're talking $300 an hour sometimes. >> reporter: yeah. he says that because of overly verbose singing of the national anthem that, actually, games can be canceled before they're even over, and then coaches would have a right to protest the games. but the national anthem supporters didn't like it. listen. >> i don't agree with it. i think it's a bad policy. i think there's got to be some other time that can be cut. >> i'd go back to the 1960 with high school hockey, and we've always played the national anthem. so i think, i think that it's something that should be done, it's part of our history and our country and absolutely should be

part of the game. >> reporter: so guess what? the commissioner's now planning to hold another meeting to kind of see if there's a way to review the issue and maybe make adjustments to get the national anthem pack in before all the hockey -- back in before all the hockey games. one of the suggestionings is why not instead of having people sing i live, you do it prerecorded, it's always a minute and a half, you're patriotic, and you still have the time you need to play the hockey game you need. megyn: it's amazing how they existed all this time singing it and now no longer. trace, thank you. >> reporter: okay. megyn: well, it's one of the biggest shopping days of the year, black friday. but more and more stores are starting the holiday shopping rush even earlier. and there's controversy about it. next.

: >>megyn: we are told adultery is criminal in the armed forces because it can disrupt order and discipline or discredit the armed forces. what do